United States v. Marcelo Montanez-Trejo

Case: 16-41088 Document: 00514143138 Page: 1 Date Filed: 09/05/2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

No. 16-41088

Fifth Circuit

FILED

September 5, 2017

UNITED STATES OF AMERICA, Lyle W. Cayce

Clerk

Plaintiff - Appellee

v.

MARCELO MONTANEZ-TREJO,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:16-CR-247-1

Before STEWART, Chief Judge, and KING and JONES, Circuit Judges.

PER CURIAM:*

Defendant–Appellant Marcelo Montanez–Trejo pleaded guilty, without

a plea agreement, to illegally reentering the United States after previously

having been removed. On appeal, Montanez–Trejo argues that the district

court erred in entering judgment against him under 8 U.S.C. § 1326(b)(2),

rather than § 1326(b)(1), and erred in applying a 16-level enhancement under

U.S.S.G. § 2L1.2(b)(1)(A)(ii). For the following reasons, we AFFIRM the

conviction and sentence, and REMAND for the limited purpose of correcting

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

CIR. R. 47.5.4.

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the judgment as described below.

I. FACTUAL AND PROCEDURAL BACKGROUND

In March 2016, Defendant–Appellant Marcelo Montanez–Trejo

encountered law enforcement while he was walking along the highway near

Alice, Texas. Law enforcement determined that Montanez–Trejo was a citizen

of Mexico with no legal right to enter the United States, and Montanez–Trejo

admitted that he had entered the United States by crossing the Rio Grande

River. An immigration record check revealed that Montanez–Trejo had

previously been removed from the United States on May 29, 2013, following a

conviction in Nebraska. Specifically, on August 26, 2011, Montanez–Trejo was

convicted on two counts of sexual assault in the first degree in Nebraska in

violation of Neb. Rev. Stat. § 28-319 and sentenced to two to three years

imprisonment on each count (to be served consecutively). 1

On May 4, 2016, Montanez–Trejo pleaded guilty, without a plea

agreement, to count one of the indictment, which charged him with illegal

reentry in violation of 8 U.S.C. § 1326(a) and (b). Applying the 2015

Sentencing Guidelines, the PSR assigned a base offense level of 8. U.S.S.G.

§ 2L1.2(a). The PSR then added a 16-level enhancement under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii) because Montanez–Trejo’s Nebraska conviction for sexual

1 The Presentence Investigation Report (PSR) described the background of this offense

as follows:

On April 25, 2011, the defendant was arrested for two counts of 1st

degree sexual assault. The investigation revealed that on April 22, 2011, two

female juveniles, ages 15 and 16, ran away from the Norfolk Group Home in

Norfolk, Nebraska. Both juveniles and the defendant were located on April 25,

2011, at the New Victorian Inn and Suites in Norfolk. After interviewing the

juveniles, it was determined that after leaving the group home, both girls met

with the defendant. The defendant rented a room at a Super 8 Motel where

the defendant and the 15 year old juvenile had sexual intercourse on April 22,

2011. On April 23, 2011, the defendant paid for a room at the Budget Inn

where he and the 15 year old juvenile again had sexual intercourse. The

defendant and both juveniles were subsequently located and taken into

custody on April 25, 2011.

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assault was a “crime of violence.” After a 3-level reduction for acceptance of

responsibility, the PSR calculated a total offense level of 21. The PSR also

assigned a criminal history category of II. Accordingly, the PSR concluded that

the maximum term of imprisonment was 20 years (pursuant to 8 U.S.C.

§ 1326(b)(2)) and the Guidelines range was 41 to 51 months. The PSR,

however, also noted that proposed amendments to the Guidelines would

become effective November 1, 2016. The PSR stated that, under the proposed

amendments, the Guidelines range would be 21 to 27 months.

On July 19, 2016, the district court held the sentencing hearing. As an

initial matter, the district court adopted the findings of the PSR, including that

the total offense level was 21, the criminal history category was II, and the

Guidelines range was 41 to 51 months in prison. Montanez–Trejo’s counsel

offered several arguments for a lower sentence: (1) Montanez–Trejo was

unaware that he would face such a severe sentence upon reentry; (2) his

Nebraska conviction “was not a situation where there was aggression or a

forced sexual assault . . . . This was a situation where they were boyfriend and

girlfriend”; and (3) he was coming to Houston to work with his brother and has

significant family support in Mexico. Montanez–Trejo’s counsel also requested

that the district court sentence him to 21 months in prison, which was the low

end of the Guidelines range under the proposed amendments. 2 The

Government agreed that a low end sentence would be appropriate. The district

court ultimately imposed a sentence of 30 months in prison. The district court’s

2 The district court asked whether the Guidelines range under the proposed

amendments was 21 to 27 months, to which Montanez–Trejo’s counsel responded in the

affirmative. On appeal, Montanez–Trejo now says that the correct Guidelines range under

the proposed amendments was actually 15 to 21 months. This purported error, however, does

not serve as the basis for any of Montanez–Trejo’s arguments on appeal. Thus, we need not

address this issue further (including whether Montanez–Trejo’s counsel waived any objection

to this error by agreeing with the district court).

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judgment reflects that Montanez–Trejo’s conviction for illegal reentry was in

violation of 8 U.S.C. § 1326(a) and (b)(2). Montanez–Trejo timely appeals.

II. DISCUSSION

On appeal, Montanez–Trejo raises two arguments: (1) his Nebraska

conviction was not an aggravated felony, and thus, the district court erred in

entering judgment under § 1326(b)(2) rather than § 1326(b)(1); and (2) his

Nebraska conviction was not a crime of violence, and thus, the district court

erred in applying a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii).

As Montanez–Trejo concedes, he failed to raise either of these arguments in

the district court, and thus, our review is for plain error. See, e.g., United

States v. Ellis, 564 F.3d 370, 377 (5th Cir. 2009). Under plain error review,

Montanez–Trejo must meet a four-prong test: he must show that there was

(1) an error, (2) that was plain, and (3) that affected his substantial rights; and

if those first three prongs are met, (4) we have the discretion to remedy the

error if it “seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” See id. (quoting United States v. Mares, 402 F.3d 511,

520 (5th Cir. 2005)).

Both of Montanez–Trejo’s arguments relate to whether his Nebraska

conviction qualifies under the generic offense of sexual abuse of a minor. The

crux of Montanez–Trejo’s first argument is whether his prior Nebraska

conviction qualifies under the generic offense of “sexual abuse of a minor” such

that it is an “aggravated felony” subject to § 1326(b)(2). Under § 1326(b)(2), a

defendant convicted of illegal reentry “whose removal was subsequent to a

conviction for commission of an aggravated felony” is subject to a maximum

imprisonment term of 20 years. If the defendant’s prior conviction was not an

aggravated felony, then § 1326(b)(1) applies and the defendant is subject to a

maximum imprisonment term of 10 years. The term “aggravated felony” is

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defined to include “sexual abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A).

Montanez–Trejo’s second argument again turns on whether his prior

Nebraska conviction qualifies under the generic offense of “sexual abuse of a

minor,” but for this argument, whether his prior Nebraska conviction qualifies

is for the purpose of establishing that it is a “crime of violence” subject to

U.S.S.G. § 2L1.2(b)(1)(A)(ii). Under U.S.S.G. § 2L1.2(b)(1)(A)(ii), a defendant

is subject to a 16-level enhancement if he was previously deported after a

“crime of violence.” In the commentary, “crime of violence” is defined to include

“sexual abuse of a minor.” U.S.S.G. § 2L1.2 cmt.B(iii).

In sum, if Montanez–Trejo’s Nebraska conviction does not qualify under

the generic offense of “sexual abuse of a minor,” then the district court erred in

entering judgment under § 1326(b)(2) rather than § 1326(b)(1), and erred in

applying a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). 3

Although both arguments implicate the generic offense of sexual abuse of a

minor, the parties address the arguments separately, and thus, we address

each argument separately below.

A. Whether the District Court Plainly Erred in Convicting Montanez–

Trejo Under § 1326(b)(2)

Montanez–Trejo argues that, because his Nebraska conviction does not

qualify as sexual abuse of a minor, the district court erred in entering judgment

against him under § 1326(b)(2). According to Montanez–Trejo, his judgment

should be corrected to reflect that he was convicted under § 1326(b)(1), not

§ 1326(b)(2), because the erroneous judgment has significant immigration

consequences. To determine whether Montanez–Trejo’s Nebraska conviction

3 Although the offense of sexual abuse of a minor is enumerated separately in the

statute and the Guidelines, the parties do not assert that this has any effect on the generic

meaning of that offense. See United States v. Najera-Najera, 519 F.3d 509, 512 n.2 (5th Cir.

2008) (noting that the different context in which “sexual abuse of a minor” appeared, namely

8 U.S.C. § 1101(a)(43) and U.S.S.G. § 2L1.2, was “a distinction without a difference”).

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qualifies as sexual abuse of a minor (one of the enumerated aggravated felony

offenses for the purpose of § 1326(b)(2)), “we ‘employ a categorical approach by

looking to the statute . . . of conviction, rather than to the specific facts

underlying the crime.’” See Esquivel–Quintana v. Sessions, 137 S. Ct. 1562,

1568 (2017) (omission in original) (quoting Kawashima v. Holder, 565 U.S. 478,

483 (2012)). “Under that approach, we ask whether ‘the state statute defining

the crime of conviction categorically fits within the generic federal definition of

a corresponding aggravated felony’”—i.e., sexual abuse of a minor. Id. at 1568

(internal quotation marks omitted) (quoting Moncrieffe v. Holder, 569 U.S. 184,

190 (2013)). “[W]e presume that the state conviction ‘rested upon . . . the least

of th[e] acts’ criminalized by the statute, and then we determine whether that

conduct would fall within the federal definition of the crime.” Id. (omission and

second alteration in original) (quoting Johnson v. United States, 559 U.S. 133,

137 (2010)). The Nebraska statute under which Montanez–Trejo was

convicted, Neb. Rev. Stat. § 28-319, provides, in relevant part, the following:

Any person who subjects another person to sexual penetration

(a) without the consent of the victim, (b) who knew or should have

known that the victim was mentally or physically incapable of

resisting or appraising the nature of his or her conduct, or (c) when

the actor is nineteen years of age or older and the victim is at least

twelve but less than sixteen years of age is guilty of sexual assault

in the first degree.

Id. § 28-319(1). 4

As an initial matter, we have previously defined the generic offense of

sexual abuse of a minor to involve three elements: conduct that was (1) sexual,

(2) abusive, and (3) with a minor. 5 See Najera-Najera, 519 F.3d at 511.

4 This statute has not been amended since Montanez–Trejo’s conviction in 2011.

5 As discussed in detail below, the Supreme Court’s recent decision in Esquivel–

Quintana overruled this court’s prior precedent with respect to what the maximum age of a

minor is for the generic offense of sexual abuse of a minor. See Esquivel–Quintana, 137 S.

Ct. at 1568–72 (“Where sexual intercourse is abusive solely because of the ages of the

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Accordingly, the Nebraska statute at issue here is overbroad because

subsections (a) and (b) do not qualify as the generic offense of sexual abuse of

a minor (given that they do not require the victim to be a minor). 6

That is not the end of the inquiry, however, because the Government

argues that the modified categorical approach applies. “Under that approach,

a sentencing court looks to a limited class of documents (for example, the

indictment, jury instructions, or plea agreement and colloquy) to determine

what crime, with what elements, a defendant was convicted of.” Mathis v.

United States, 136 S. Ct. 2243, 2249 (2016). Importantly, the modified

categorical approach “only applies when a statute is ‘divisible,’ meaning it ‘sets

out one or more elements of the offense in the alternative.’” United States v.

Lobaton–Andrade, 861 F.3d 538, 541 (5th Cir. 2017) (per curiam) (quoting

Descamps v. United States, 133 S. Ct. 2276, 2281 (2013)). Thus, whether the

Nebraska statute at issue here is divisible depends on whether its three

subsections are alternative elements of the offense or alternative means of

satisfying a single element. See, e.g., United States v. Hinkle, 832 F.3d 569,

575 (5th Cir. 2016). “[W]e have recognized that ‘[t]he test to distinguish means

from elements is whether a jury must agree.’” Lobaton–Andrade, 861 F.3d at

542 (second alteration in original) (quoting United States v. Howell, 838 F.3d

489, 497 (5th Cir. 2016)).

Here, the parties dispute whether the Nebraska statute at issue here is

divisible. Although Montanez–Trejo concedes that no Nebraska court has

participants, the victim must be younger than 16.”). The Supreme Court also expressly left

open the question of whether the generic offense requires a certain age differential between

the victim and the perpetrator. See id. at 1572.

6 Rape is also included in the definition of aggravated felony. 8 U.S.C.

§ 1101(a)(43)(A). The Government, however, concedes that subsections (a) and (b) do not

qualify under the generic offense of rape because Nebraska includes digital penetration in

the definition of sexual penetration, see Neb. Rev. Stat. § 28-318(6), which is not included in

the generic offense of rape, see Perez–Gonzalez v. Holder, 667 F.3d 622, 627 (5th Cir. 2012).

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addressed the means or elements issue for this precise statute, he contends

that the statute contains means (making it indivisible) because the subsections

can be charged in the alternative in a single count, and Nebraska courts treat

similar charges as presenting means of committing an offense. According to

Montanez–Trejo, his contention is underscored by the fact that the actual

information filed against him charged him with violating each of the statute’s

subsections in the alternative for each count. The Government counters by

pointing to a Nebraska Supreme Court decision referring to the statute as

containing “elements,” and the Government adds that, regardless of the actual

merits, any error is not sufficiently clear to meet the second prong of plain error

review.

We need not decide whether the Nebraska statute at issue here is

divisible because we conclude that, even if the district court did not plainly err

in finding that it is divisible, the modified categorical approach does not clarify

the subsection under which Montanez–Trejo was convicted. As noted above,

assuming that the Nebraska statute is divisible, the modified categorical

approach only allows a court to look at a limited class of documents. In

Shepard v. United States, 544 U.S. 13 (2005), the Supreme Court stated that,

in applying the modified categorical approach to a previous state conviction by

guilty plea, courts are limited to considering “the terms of the charging

document, the terms of a plea agreement or transcript of colloquy between

judge and defendant in which the factual basis for the plea was confirmed by

the defendant, or to some comparable judicial record of this information.” Id.

at 26; see also Larin-Ulloa v. Gonzales, 462 F.3d 456, 464 (5th Cir. 2006) (“The

use of these documents is permitted because they are considered sufficiently

conclusive and reliable to establish the facts to which the alien actually pleaded

guilty.”). Critically, the only Shepard-approved document in the record here is

the information used to charge Montanez–Trejo, but the information accuses

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him of violating in the alternative all three subsections of Neb. Rev. Stat. § 28-

319(1). Put another way, the information does not provide the clarity needed

to determine whether Montanez–Trejo necessarily admitted to the elements of

the generic offense of sexual abuse of a minor; instead, the information

suggests that he could have admitted to violating any of the three subsections,

two of which do not meet the generic offense of sexual abuse of a minor. 7 Thus,

the district court committed a clear error in entering judgment under

§ 1326(b)(2): his Nebraska conviction does not qualify under the generic offense

of sexual abuse of a minor given that the lone Shepard-approved document in

the record does not clarify the subsection under which he was convicted, and

thus, his Nebraska conviction was not a prior aggravated felony necessary to

implicate § 1326(b)(2).

Moreover, Montanez–Trejo has met the third prong of plain error review

because, had the clear error been recognized, the district court would have

entered judgment against him under § 1326(b)(1), not § 1326(b)(2). As we have

7 The Government points to a document in the record entitled “Commitment,” which

was from the deputy clerk of the Nebraska court addressed to the county sheriff. The

Commitment states that Montanez–Trejo was charged with two counts of “Sexual

assault/minor-1st degree” in violation of § 28-319. Under the Government’s theory, the

Commitment shows that Montanez–Trejo’s Nebraska conviction must have been under

subsection (c) because that is the only subsection concerning minors. The Government,

however, does not offer any argument for why this document is a Shepard-approved

document. Indeed, this document is not one of the types of documents listed in Shepard,

which limits consideration to “the terms of the charging document, the terms of a plea

agreement or transcript of colloquy between judge and defendant in which the factual basis

for the plea was confirmed by the defendant, or to some comparable judicial record of this

information.” See Shepard, 544 U.S. at 26; see also, e.g., United States v. Gutierrez–Ramirez,

405 F.3d 352, 359 (5th Cir. 2005) (holding that an abstract of judgment from California was

not a Shepard-approved document); United States v. Lopez–Cano, 516 F. App’x 350, 354 (5th

Cir. 2013) (per curiam) (“The docket sheet and the case summary are not Shepard-approved

documents because they were prepared by court not judges.”). And there is no suggestion

that Montanez–Trejo confirmed the information in the Commitment, especially considering

that it appears to have been sent by the deputy clerk to the county sheriff. Thus, in light of

Shepard, it would be clear error to rely on this document under the modified categorical

approach.

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described before, a judgment erroneously listing § 1326(b)(2) “is neither

harmless nor moot because the erroneous judgment could have collateral

consequences” given that “a conviction under § 1326(b)(2)—involving a prior

conviction of an aggravated felony—is itself an aggravated felony, ‘rendering

[the defendant] permanently inadmissible to the United States.’” United

States v. Ovalle–Garcia, -- F.3d --, 2017 WL 3391627, at *1 (5th Cir. 2017)

(alteration in original) (quoting United States v. Briceno, 681 F. App’x 334, 337

(5th Cir. 2017) (per curiam)). In light of the potentially significant immigration

consequences and limited request for relief, we exercise our discretion under

the fourth prong to correct this error by remanding for the limited purpose of

reforming the judgment to reflect his conviction under § 1326(b)(1), not

§ 1326(b)(2). See, e.g., United States v. Medrano–Camarillo, 653 F. App’x 239,

240 (5th Cir. 2016) (per curiam) (remanding under plain error review for the

limited purpose of correcting the judgment to properly reflect that the

defendant was convicted under § 1326(b)(1), not § 1326(b)(2)); United States v.

Quinanilla–Ventura, 616 F. App’x 189, 190 (5th Cir. 2015) (per curiam)

(same). 8

B. Whether the District Court Plainly Erred in Applying a 16-Level

Enhancement

We now turn to Montanez–Trejo’s second argument—i.e., whether the

district court plainly erred in applying a 16-level enhancement under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii). Montanez–Trejo notes that subsection (c) of the Nebraska

statute criminalizes consensual sexual conduct between an individual who is

19 and an individual who is one day shy of being 16. According to Montanez–

Trejo, subsection (c) does not meet the generic offense of sexual abuse of a

8 The Government has not argued that it should be given an opportunity to

supplement the record with Shepard-approved documents.

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minor for two reasons: (1) the generic offense requires at least a four year age

differential between the victim and the perpetrator (the Nebraska statute

requires only a three year age differential), and (2) the generic offense does not

consider consensual sexual activity between close-in-age individuals to be

abuse. 9

At the time of briefing in this appeal, Montanez–Trejo conceded that his

arguments were foreclosed by our precedent. In United States v. Rodriguez,

711 F.3d 541 (5th Cir. 2013) (en banc), we addressed what constituted the

generic offense of sexual abuse of a minor as used in U.S.S.G.

§ 2L1.2(b)(1)(A)(ii). Id. at 557–62. In that case, the defendant, who had a

previous conviction under a Texas law criminalizing sexual conduct with a

minor, argued, inter alia, that the district court erred in applying a 16-level

enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) because the Texas statute set

the age of consent too high (it included individuals under 17, not just

individuals under 16) and the age differential too low (he was 19 and the victim

was 16). See id. at 547, 562. After discussing the various tests that could be

used to define sexual abuse of a minor, we ultimately adopted “a plain-meaning

approach when determining the ‘generic, contemporary meaning’ of non-

common-law offense categories enumerated in federal sentencing

enhancements.” See id. at 550–53. Applying the plain-meaning approach, we

rejected both of the defendant’s arguments. Id. at 562. Specifically, we held

that the age requirement for a minor in the generic offense of sexual abuse of

a minor is an individual under 18. See id. at 559–62. Additionally, we held

9 Montanez–Trejo does not contend that the divisibility of the Nebraska statute (i.e.,

his first argument) should have any effect with respect to his second argument. In other

words, Montanez–Trejo does not contend that subsections (a) and (b) of the Nebraska statute

are overbroad for the purpose of determining whether his prior conviction was a “crime of

violence” as used in U.S.S.G. § 2L1.2(b)(1)(A)(ii); instead, his argument focuses only on

whether subsection (c) qualifies under the generic offense of sexual abuse of a minor.

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that the generic offense of sexual abuse of a minor contained no age differential

requirement between the victim and the perpetrator, thereby rejecting the

defendant’s argument that the generic definition required a four year age

differential. See id. at 562 n.28. Similarly, in United States v. Elizondo–

Hernandez, 755 F.3d 779 (5th Cir. 2014) (per curiam), we recognized that the

defendant’s argument that the generic definition of sexual abuse of a minor

required a four year age differential between the victim and the perpetrator

was foreclosed by our decision in Rodriguez. Id. at 781. In that case, we also

rejected the defendant’s argument that a conviction for indecency with a minor

by contact under a Texas statute did not constitute “abuse” within the generic

meaning of sexual abuse of a minor. Id. at 781–82.

While this appeal was pending, the Supreme Court issued its decision in

Esquivel–Quintana. 10 In that case, the Supreme Court considered whether a

prior conviction under California’s statutory rape law—which criminalized

sexual intercourse with an individual under 18 when there is a three year age

differential between the victim and the perpetrator—qualified under the

generic offense of sexual abuse of a minor. Esquivel–Quintana, 137 S. Ct. at

1567–68. After examining the language and structure of the statute, other

federal law, and state codes, the Supreme Court ultimately concluded that, “in

the context of statutory rape offenses that criminalize sexual intercourse based

solely on the age of the participants, the generic federal definition of sexual

abuse of a minor requires that the victim be younger than 16.” Id. at 1568–73.

Because the California statute at issue criminalized sexual intercourse with

an individual who was 17, the defendant’s California conviction did not qualify

under the generic offense of sexual abuse of a minor. Id. at 1572. Importantly,

10 Although recognizing that his arguments were foreclosed by precedent, Montanez–

Trejo had asked us to hold his case pending the decision in Esquivel–Quintana.

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the Supreme Court explicitly stated that, given this result, it need not reach

the issue of whether the generic offense of sexual abuse of a minor includes as

an element a minimum age differential between the victim and the

perpetrator. See id. (“We leave for another day whether the generic offense

requires a particular age differential between the victim and the

perpetrator . . . .”).

In light of Esquivel–Quintana, we requested and received supplemental

briefs from the parties addressing its effects. As an initial matter, the

Government recognized that Esquivel–Quintana rejected our conclusion in

Rodriguez that the generic offense of sexual abuse of a minor encompasses

state statutes defining minor to include individuals who are younger than 18

(rather than only individuals who are younger than 16). Thus, the Government

now concedes that Montanez–Trejo’s argument is no longer foreclosed by

Rodriguez. 11

Regarding the merits, Montanez–Trejo renews his argument that his

Nebraska conviction is broader than the generic meaning of sexual abuse of a

minor because (1) the generic definition requires a four year age differential

between the victim and the perpetrator, and (2) consensual sexual activity

between close-in-age individuals is not within the generic meaning of abuse.

Montanez–Trejo recognizes that Esquivel–Quintana held only that the generic

definition included victims who are younger than 16 and expressly left open

the question of whether the generic definition includes an age differential

requirement. That being said, Montanez–Trejo claims that “[i]t clearly and

obviously follows from that holding that consensual sexual conduct engaged in

11 As noted above, Rodriguez addressed the distinct issues of whether the generic

offense of sexual abuse of a minor has a maximum age limit of 16 and whether there is an

age differential requirement. Esquivel–Quintana’s holding concerned only the former issue.

The Government does not expressly argue that our holding in Rodriguez with respect to the

age differential requirement still controls.

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by a person one day below 16 and someone only three years older, and where

the older partner does not occupy a special position of trust in relation to the

younger partner, is not sexual abuse of a minor either.” Montanez–Trejo

attempts to a draw a line between his argument that there is a four year age

differential requirement (which he concedes cannot meet the second prong of

plain error review) and his argument that consensual sexual activity (short of

intercourse) between individuals only three years apart cannot constitute

“abuse” (which he contends is sufficiently clear to succeed under plain error

review following Esquivel–Quintana).

The Government counters that, regardless of the merits, any error is not

clear or obvious, and thus, Montanez–Trejo fails to meet the second prong of

plain error review. We agree. As we have noted before, “[a]n error is not plain

under current law if a defendant’s theory requires the extension of precedent.”

United States v. Lucas, 849 F.3d 638, 645 (5th Cir. 2017) (internal quotation

marks omitted) (quoting United States v. Trejo, 610 F.3d 308, 319 (5th Cir.

2010)). Indeed, we have described the second prong as requiring an “error so

clear or obvious that ‘the trial judge and prosecutor were derelict in

countenancing it, even absent the defendant[’]s timely assistance in detecting

it.’” Trejo, 610 F.3d at 319 (quoting United States v. Hope, 545 F.3d 293, 295–

96 (5th Cir. 2008)). Here, with respect to whether the generic offense has a

minimum age differential requirement, the Supreme Court expressly left open

that question in Esquivel–Quintana. By definition, we would need to extend

precedent or make new law (especially considering that our prior precedent

foreclosed such an argument). Such an error, if it exists, is insufficient to

qualify as plain error. See, e.g., Lucas, 849 F.3d at 645 (“We have not directly

addressed a situation in which deposition testimony of a criminal defendant is

summarized by a prosecution witness, so finding the error is an ‘extension of

precedent.’” (quoting Trejo, 610 F.3d at 319)); Ellis, 564 F.3d at 377 (“Our

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Case: 16-41088 Document: 00514143138 Page: 15 Date Filed: 09/05/2017

No. 16-41088

narrative of the decisional path this court would have to traverse to resolve the

merits of defendant’s objection to his sentence, an objection never made to the

trial court, makes plain beyond peradventure than any error was not plain.”).

Similarly, we also reject Montanez–Trejo’s argument that it clearly

follows from Esquivel–Quintana that consensual sexual activity (short of

intercourse) between individuals only three years apart is not abuse within the

scope of the generic offense of sexual abuse of a minor. Montanez–Trejo’s

argument on this point amounts to the following: given that Esquivel–

Quintana held that sexual intercourse between an individual who is 16 and an

individual who is 19 is not sexual abuse of a minor, then sexual activity (short

of intercourse) between an individual who is one day younger than 16 and an

individual who is 19 must also not be sexual abuse of a minor. That conclusion

is far from clear based on Esquivel–Quintana’s holding and Montanez–Trejo

points to no caselaw from this court requiring such a result. Thus, this

argument similarly fails to meet the second prong of plain error review. See,

e.g., Lucas, 849 F.3d at 645; Ellis, 564 F.3d at 377.

III. CONCLUSION

For the foregoing reasons, we AFFIRM Montanez–Trejo’s conviction and

sentence. We REMAND to the district court for the limited purpose of

correcting the judgment to reflect the correct statute of conviction: 8 U.S.C.

§ 1326(b)(1), not § 1326(b)(2). 12

12 Montanez–Trejo’s pending motion to stay the appeal is DENIED as moot.

15